Citation NR: 9802803
Decision Date: 01/30/98 Archive Date: 02/03/98
DOCKET NO. 95-19 911 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to an evaluation in excess of 40 percent for
chronic lumbosacral strain.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Howard M. Scott, Associate Counsel
REMAND
The veteran had active service from January 1979 to February
1992. He initially appealed from rating decisions of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville Kentucky, which denied a rating in excess of 20
for his service-connected low back disability. In a hearing
officer’s decision in April 1996, the evaluation in question
was increased to 40 percent, effective from November 1993.
The veteran has continued his appeal, contending that the
disability should be rated at least 60 percent disabling.
The veteran testified in June 1997 before the undersigned
member of the Board at the RO that before being released by
his employer, the United States Post Office, he was evaluated
by Dr. Robert Stober, on behalf of the Post Office, in June
1995. Although the claims folder contains records of
treatment received from the veteran's private physician, Dr.
Chang, in June 1995, Dr. Stober’s evaluation for the Post
Office is not of record.
The veteran further testified that he had a claim for Social
Security disability benefits currently in appellate status.
The medical records pertaining to the granting of such
benefits have similarly not been included in the claims file.
Such records would likely be pertinent to his current appeal.
The veteran also testified that he had been on vocational
rehabilitation, which helped him with a barber chair and back
bar, but he had only been able to work one day a week.
Generally, when VA is put on notice prior to the issuance of
a final decision or the possible existence of certain records
and their relevance, the BVA must seek to obtain those
records before proceeding with the appeal. Murincsak v.
Derwinski 2 Vet.App. 363, 373 (1992).
Records supportive of the veteran’s industrial impairment due
to his back disability are not of record and the veteran is
informed that records relating to lost time or sick leave
would be important to his claim. See Spurgeon v. Brown, 10
Vet. App. 194, 197 (1997) (remand required where Board failed
to notify the appellant that he was responsible for
furnishing employment records to support his claim that his
wrist disability affected his employment, causing him to miss
800 hours of work with the U.S. Postal Service).
The Board also notes that the veteran has testified that he
is in constant pain due to his back disorder. Medical
records show that he is receiving epidural block injections
on a monthly basis. At his most recent VA examination in
October 1995, however, the veteran had complained of low back
pain “on and off.” In view of the evidence of increasing
disability during the course of the appeal, and the relevance
of pain in evaluations for low back disabilities (see VA
Office of General Counsel Precedent Opinion 36-97, a copy of
which has been included in the claims folder), a current VA
examination with a medical opinion on the extent and
frequency of the veteran's pain would be helpful in
evaluating the veteran's claim.
In view of the veteran’s recent testimony before the Board,
the additional sources of pertinent evidence which have come
to light, and controlling legal precedents, the Board is
unable to reach a final decision at this time and further
development is necessary. Accordingly this case is REMANDED
for the following actions:
1. The RO should assist the veteran and
his representative in obtaining records
from Dr. Robert Stober, who apparently
evaluated the veteran's back disorder on
behalf of the Post Office in June 1995,
and pertinent Post Office records showing
missed work or inability to continue with
employment due to his low back
disability. The RO should inform the
veteran that, should the RO’s attempt to
obtain such records and any other
employment records he identifies as
pertinent to his appeal prove
unsuccessful, the ultimate responsibility
for furnishing such records rests with
him.
2. The RO should request a copy of the
veteran’s appeal to the Social Security
Administration regarding his claim for
disability benefits as well as any
medical records relied upon concerning
that claim.
3. Any available vocational
rehabilitation records pursuant to the
program described by the veteran at his
hearing before the Board should be
obtained and associated with the claims
folder. If no records are obtained, the
RO should document in the claims file its
attempt to secure such records.
4. The veteran should be afforded a VA
examination to determine the nature and
extent of the his service-connected low
back disability. All indicated tests
should be accomplished, including any
limitation of range of motion of the low
back. The examiner should be requested
to describe the extent of the veteran’s
low back pain, including whether it is
constant or periodic, and the degree of
such pain. The limitations on industrial
activities, if any, such as standing,
walking, bending and lifting due to back
pain, should be described. The claims
folder should be provided to the examiner
for review in connection with the
examination.
5. The RO should review the case when
the requested actions have been
completed, to include consideration of
(1) the effects of pain, as contemplated
by VAOPGCPREC 36-97 and 38 C.F.R. §§ 4.40
and 4.45, and (2) whether referral for an
extra-schedular rating under 38 C.F.R.
§ 3.321(b)(1) is warranted.
Thereafter, the case should be processed in accordance with
the usual procedures and returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of
this case. The veteran need take no action until otherwise
notified. The purpose of this REMAND is to obtain additional
evidence and ensure due process.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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